Court Discusses Elements of Probable Cause

In a criminal case, a Westchester Criminal Lawyer said that, at approximately 9:45 a.m., a civilian resident living at 174 Tibbetts Road, Mr. James Nolan, heard his doorbell ring. When he answered the door, he observed a male Hispanic, wearing a blue jacket and yellow hood, who asked him if he had a room available. When Mr. Nolan stated he did not, the Hispanic male apologized and walked away. Mr. Nolan observed the Hispanic male cross the street towards 175 Tibbetts Road and saw him ring that doorbell; no one answered the door and the Hispanic male crossed the street again and walked toward 178 Tibbetts Road. When the Hispanic male arrived at 178 Tibbetts Road, he rang that doorbell as well, and Mr. Michael McGee opened the door. Mr. McGee testified that there was a male Hispanic at his door inquiring if he had a room available. When Mr. McGee responded that he did not have a room available, the male Hispanic thanked him and walked away. Mr. Nolan, Mr. McGee’s next door neighbor, observed the exchange and continued to observe the male Hispanic continue walking northbound towards another house. When Mr. Nolan was unable to see the male Hispanic from his home, he went outside to his front porch and observed a yellow moped at the side of a hedge within his property of 174 Tibbetts Road. Within minutes, Mr. Nolan observed the Hispanic male come back to his property, pick up the yellow moped and walk northbound. Mr. Nolan lost sight of the male Hispanic and got in his pick up truck, which was parked across the street, to see if he could locate and observe the male Hispanic. When Mr. Nolan crossed the street he discovered that the yellow moped he had previously seen in his property was behind a bush at186 Tibbetts Road. Mr. Nolan was in his truck approximately seven (7) to eight (8) minutes, when he saw the male Hispanic run down the side of 184 Tibbetts Road. Mr. Nolan called 911; as he was reporting the incident, he observed the male Hispanic pick up the yellow moped and drive toward McLean Avenue. Mr. McGee also testified that he observed the male Hispanic drive the yellow moped toward McLean Avenue.

Thereafter, a Westchester Criminal Lawyer said that, several Yonkers police officers heard a radio transmission reporting a suspicious person in the vicinity of Tibbetts Road; the description transmitted was that of a male Hispanic, wearing a blue jacket, yellow collar and driving a yellow scooter. It was further transmitted that he was observed ringing doorbells in that vicinity. Several units responded to this radio transmission as the police investigation was swiftly developing; officers transmitted, through the radio, that the description of this suspect fit the description of a repetitive burglar who had been burglarizing the area for the past several weeks and that the burglary suspect also drove a yellow scooter. Sergeant Kreso, one of the responding officers, drove to 174 Tibbetts Road where he encountered Mr. Nolan and Mr. McGee. At the scene, both Nolan and McGee described the individual to Sgt. Kreso. Another officer who also responded to Mr. Nolan’s 911 call searched 184 Tibbetts Road and that officer discovered that there was an open window at that location; the description of the suspect was again transmitted over the radio as well as the fact that an open window was observed by police officers at 184 Tibbetts Road.
Detective Benash was on duty the morning of the incident, and had been listening to the various radio transmissions describing a suspected repetitive burglar driving a yellow moped in the vicinity. Detective Benash was on an observation spot on the west side of the McLean Avenue bridge when he observed a male on a yellow scooter, with no license plates, wearing a blue jacket, yellow collar, driving on the wrong side of the McLean Avenue bridge. As the suspect drove by on the yellow scooter, Det. Benash exited his unmarked police vehicle and grabbed a hold of the yellow scooter’s handlebars; other officers arrived at the scene simultaneously and assisted Detective Benash. When the suspect came to a stop, Det. Benash informed the individual that he was investigating an incident and directed the suspect to sit by the street curb. One of the officers at the scene transmitted over the radio that an individual fitting the description of the burglary suspect had been detained in the area of McLean Avenue.

Almost immediately after hearing over the radio that a suspect had been detained, Sgt. Kreso asked Mr. McGee and Mr. Nolan if they would accompany him to the McLean Avenue bridge area for possible identification of the suspect. Sgt. Kreso drove Mr. McGee and Mr. Nolan to McLean Avenue where police had apprehended the suspect; Mr. McGee identified the suspect as the male Hispanic he had seen ringing doorbells in his neighborhood. Mr. Nolan also identified the suspect. Sgt. Kreso nodded to Det. Benash confirming that the witnesses had positively identified the Defendant; the positive identification was transmitted over the radio. Defendant Julio Velez was handcuffed while on the ground and searched. The police recovered two boxes, one had a large amount of jewelry, the other had coins and World War II medals and an envelope with US currency. Defendant and the yellow scooter were transported to the police precinct.

Defendant was convicted of two counts of Burglary in the Second Degree and Criminal Possession of Stolen Property in the Third Degree after a jury trial. Defendant appealed the trial court’s denial of those branches of Defendant’s Omnibus Motion which were to suppress physical evidence and identification evidence.

The issues in this case are whether the police officers obtained probable cause to arrest defendant; and whether defendant is entitled to the suppression of the physical and identification evidence against him, on the ground that it was obtained by virtue of his unlawful arrest.
The Court in deciding the case said that, in order for a court to find that police had probable cause to arrest, the evidence must establish that the police possessed information which would lead a reasonable person to conclude that it is more probable than not that a crime has been committed and that the person being arrested is the person who committed it. Moreover, probable cause does not mandate that there be an awareness of a specific crime, but only an awareness that some crime has been committed that would justify an arrest. A lawful arrest does not require proof to a mathematical certainty, or beyond a reasonable doubt.

In this regard, probable cause is not based on the subjective beliefs of the arresting officers, but rather, it is a judicial determination based upon a review of all the relevant objective information known to the officers at the time of arrest, with due consideration given to the expertise of the officers involved and to the reasonable inferences to be drawn from the totality of the circumstances. A synoptic evaluation of all information available to police is essential because viewed singly, such information may not be persuasive, yet when viewed together the puzzle may fit and probable cause found. The court cannot discard common sense and common knowledge when assessing an officer’s testimony, however, only when such testimony appears to be manifestly untrue, physically impossible, contrary to experience, or self-contradictory must it be rejected.

In the instant case, the Court finds that all witnesses testified credibly. While Defendant attempts to characterize police officers’ testimony as “lies” or “perjurious”, the Court finds that none of the witnesses, civilian and police, testified in a manner unworthy of belief. Nor does the Court finds that the testimony was a recent fabrication tailored to nullify constitutional objections.

The Court said that, defendant would have the Court believe that the only way police would have had probable cause to arrest defendant is with a positive identification from home owners to confirm that a crime had been committed. This assertion is unpersuasive. To expect or require such from law enforcement would undermine the investigatory powers of the police, compromise our citizens safety and would be tantamount to requiring police to hold a “trial on the sidewalk” by having criminal victims, witnesses, the suspect and police converge on the scene of a crime and prove that a crime has been committed beyond a reasonable doubt. Probable cause is not proof beyond a reasonable doubt.

CPL §70.10(2) states that reasonable cause’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that an offense was committed and that the suspect committed it. When, as here, probable cause is not based solely on the officer’s own observations but, in part, on information supplied by another individual it must be determined that the informant is (1) reliable and (2) that he has a sufficient basis for his knowledge of the suspect’s criminal activity. A witness who supplies information to the police about an individual’s involvement in a crime, is presumed to be reliable since he could be prosecuted if his report were a fabrication.

In the instant case, police officers responded to a radio transmission that was initiated by a civilian who called the police after observing an individual ringing door bells and running out of the yard, approximately two houses down from his own. The civilian complainant, James Nolan, credibly testified that he had first encountered this individual when, in the morning of the incident, someone rang his door bell and knocked on his door simultaneously. When Mr. Nolan answered the door, a Hispanic man with a blue jacket and a yellow hood, was at his door asking if he had a room to rent. When Mr. Nolan stated that he did not, the individual went to several houses in the immediate vicinity. Mr. Nolan also observed the yellow scooter in the hedges of his property and near some bushes by 186 Tibbetts Road. Mr. Nolan then observed the individual run from the side of 184 Tibbetts Road at which time he called 911 to report what he had observed. Police arrived at the scene and spoke with Mr. Nolan.

When a police officer receives a radio transmission, the officer is entitled, and in fact is duty bound, to take action on said radio call. An officer cannot ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message.

Defendant invites this Court to consider the police officers’ testimony “standing alone”. Defendant contends that when contrasting the testimony of the police with that of the civilian witness’ the People have failed to meet their burden and the motion to suppress the physical evidence must be granted.

The Court held that such assertion is without merit. Even if this Court were to consider the police officers’ testimony “standing alone”, it is this Court’s opinion that at the very least, the police had reasonable suspicion to stop Defendant with the information they received about a suspicious individual that was ringing doorbells. However, the police had more information than this; upon review of the credible testimony and the audio tape of the radio transmissions, it is clear to this Court that the police obtained sufficient information regarding Defendant and his actions to believe that a crime was committed and that the Defendant was the person who committed it. The radio transmission further included information that fellow officers had a seen a picture of an individual matching the description transmitted who was suspected of committing burglaries around the Rumsey Road area. A subsequent transmission indicated that witnesses observed Defendant running out of a yard from a home located at 184 Tibbetts Road where, subsequently, police discovered an open window. Clearly, when pursuing a suspect armed with all of this information, the police had probable cause to arrest.

Upon review, the Court said that, probable cause supported the arrest of Defendant, even prior to the identification of the witnesses at the scene. Coupled with the highly specific physical description of the suspect, officers observed the suspect to be in the immediate vicinity of 184 Tibbetts Road and traveling down McLean Avenue, the direction which witnesses had told the police that they observed the suspect leaving the scene on the yellow scooter. It bears adding that there were no other individuals matching that description in the vicinity. Under the totality of the circumstances, the combination of the particularized description of Defendant and the very close temporal and spatial proximity between the time the witnesses observed the suspect on Tibbetts Road and the time police apprehended him on McLean Avenue, sufficient information existed and was known by police to provide police officers probable cause to effectuate Defendant’s arrest. Therefore, police officers had probable cause to arrest Defendant. Further, merely because police officers did not immediately handcuff and search Defendant, did not render his arrest infirm or lacking probable cause. Armed with probable cause to arrest, police officers had the right/ability to search Defendant. Thus, the Court held that, that portion of Defendant’s motion seeking suppression of evidence is denied as probable cause to arrest and search Defendant existed.

With respect to that branch of Defendant’s Omnibus motion seeking to suppress the out-of-court identification made by the two civilian witnesses, the Court held that, such request is denied. Defendant argues that the identification procedure utilized by police was unduly suggestive. The People oppose Defendant’s motion.

The Court said that the test for suppression of identification testimony is whether the identification procedure has been tainted such that the suggestiveness creates a substantial likelihood of misidentification. The focus is on the reliability of in-court identifications where there have been prior police-arranged procedures between a defendant and an eyewitness for the purpose of establishing the identity of the suspect. In seeking to elicit an in-court identification, the People bear the burden of establishing the propriety of the police-arranged out-of-court identification by clear and convincing evidence.

In the instant case, there was a show up identification conducted by the Yonkers police officers. In show up identification procedures, the People bear the burden to establish the admissibility of such show up identification evidence and once the People establish the propriety of the show up procedure, the defendant then has the burden of proving that the show up identification procedure was unduly suggestive. The People must present evidence that the show up procedure occurred in close spatial and temporal proximity to the crime to pass constitutional muster.

In the case at bar, there was a rapid and unbroken chain of events that swiftly developed: civilian witnesses observed Defendant ringing doorbells and an open window at a private residence in the vicinity of Tibbetts Road, they also observed Defendant traveling on a yellow moped away from the scene, police officers immediately pursued and apprehended Defendant and the civilian identification occurred within two blocks of the initial sighting of Defendant at Tibbetts Road and witnesses identified Defendant within minutes of his apprehension. Therefore, the show up identification of Defendant was permissible.

However, even if the show up police-arranged out-of-court identification was deemed suggestive, the court must then determine if there would be an independent basis for a witness to make an in-court identification of the defendant. The fundamental purpose of the independent source phase of a Wade hearing is to determine, in a case in which there have been impermissibly suggestive police identification procedures, whether there nevertheless exists a sufficiently reliable basis for a witness’s inculpatory identification of the defendant at trial.

In view of the foregoing, the Court finds that the pre-trial out-of-court identification procedure was the product of a suggestive police arranged identification procedure. As a result, the Court considered the existence of an independent source for the in-court identification made by the People’s witnesses. Accordingly, the People have established by clear and convincing evidence that Mr. Nolan and Mr. McGee possessed an independent basis for identifying Defendant.
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